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State law, public policy and discrimination
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State law, public policy and discrimination t-will employees throughout this her pregnancy in December 1997. The company country have attempted to rely on a terminated her employment in April 1998. Ms. public policy exception to bypass fedThibodeau then filed suit against Design Group eral and state antidiscrimination laws in November 1999, alleging wrongful termination that do not cover employers with of employment in violation of public policy. fewer than a certain number of Specifically, Ms. Thibodeau workers, but who otherwise would be alleged that Design Group fired liable for discrimination against their Dentists may want to her as a result of a pregnancyemployees under these laws. For related appointment to see her think twice about instance, the Americans with Disabilphysician. Design Group, however, terminating an ities Act only covers employers with 15 claimed that Ms. Thibodeau’s teremployee even if the or more employees.1 mination stemmed from her perConnecticut’s Fair Employment formance deficiencies and that, in dentists believe they Practices Act—another example—bars any event, Ms. Thibodeau could may be ultimately employers with three or more people not rely on public policy as the victorious in a state from discriminating against their basis for her suit. supreme court. employees on the basis of pregnancy. The trial court granted sumThe Supreme Court of Connecticut mary judgment to Design Group, recently held that an employee, Nicole ruling that Ms. Thibodeau’s termiAnn Thibodeau, could not attempt an end run nation did not violate any public policy. Specifiaround this statute, on the basis of public policy, cally, the court held that while a Connecticut by suing her former employer for terminating her public policy did exist against employment disbecause she was pregnant, despite the fact that crimination on the basis of pregnancy, that policy the employer had fewer than three employees.2 was limited to employers with three or more The defendant, Design Group One Architects, employees, given the exemption under the Fair LLC (“Design Group”), hired Ms. Thibodeau in Employment Practices Act to employers April 1997 as an at-will employee to perform the employing fewer than three employees. duties of receptionist, secretary and bookkeeper. The appellate court reversed the trial court, During her period of employment, Design Group holding that Connecticut’s laws generally had only two employees, including Ms. reflected a public policy against sex discriminaThibodeau. tion in employment, regardless of the number of Ms. Thibodeau first notified Design Group of people a company employs. In support of its ruling, the appellate court reviewed various state and federal antidiscrimiBY PETER M. SFIKAS, J.D. nation laws purporting to embody this policy
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JADA, Vol. 133, November 2002 Copyright ©2002 American Dental Association. All rights reserved.
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against sex discrimination. The appellate court also noted that the Fair Employment Practices Act itself manifested a public policy against sex discrimination in employment. In rejecting the argument that the act’s exemption for small employers undermined such a broad policy, the appellate court stated that the act embodied a public policy universal for all employees, but provided a statutory remedy only for those employees who work for employers with three or more people. This case was next appealed to the Connecticut Supreme Court. A majority (five justices) of the Connecticut Supreme Court disagreed with the appellate court’s ruling and ordered the appellate court to affirm the trial court’s original judgment in favor of Design Group. Two justices of the court dissented. The majority first recognized the general proposition that an employer and employee have an at-will relationship in the absence of a contract to the contrary. The majority acknowledged that Connecticut had developed a public policy exception over the years, limiting an employer’s discretion to terminate an employee. However, the majority emphasized that this public policy exception was quite limited and had been permitted only when based on an important and clearly articulated policy. Given its narrow view of the public policy exception, the majority disagreed with the appellate court that a general public policy against employment discrimination trumped the exemption contained in the Fair Employment Practices Act because the exemption itself was an expression of public 1566
policy. The majority stated that to affirm the appellate court would be to ignore a clearly expressed legislative intent to the contrary. The majority then discussed the rationale for the exemption. The majority noted that the
A majority of the Connecticut Supreme Court held that a broad public policy against discrimination superseded any statutory exemptions for small employers.
state legislature did not want to subject the state’s smallest employers to the large burdens involved, financial or otherwise, in defending an employment discrimination case, regardless of the case’s merit. The legislature’s objective was to eliminate discrimination on a larger scale. The majority also noted that the legislature was likely concerned with protecting the intimate and personal relationships that exist in a small-business setting. Regardless of the wisdom of the legislature’s decision to exempt small businesses, the majority stated it could not disregard such an unambiguous legislative policy determination. The majority also rejected arguments put forth by Ms. Thibodeau. First, Ms. Thibodeau argued that, although the state legislature shielded small employers from the various administrative procedures and remedies of the Fair Employment Practices Act, the legislature did not necessarily intend that these employers also would be protected against common
law discriminatory discharge claims. The legislature merely intended to exempt these employers from the burdens of the act’s administrative scheme. The majority responded that the legislature included the administrative scheme for the benefit and protection of the employers. In particular, the scheme was designed to provide all parties with a mechanism to resolve discrimination claims, without the delay and expense associated with bringing an action in state or federal court. For instance, the act requires the state Commission on Human Rights and Opportunities to investigate every complaint, and only after the commission has determined that a reasonable cause for action exists, and arbitration has failed, is a hearing authorized. Given the protections afforded employers through this scheme, the majority reasoned that it would defy common sense to conclude that the legislature would have excluded small employers from the scheme, but nonetheless subject them to wrongful discharge suits based on discrimination. The majority also distinguished cases that Ms. Thibodeau cited from other jurisdictions, holding that a broad public policy against discrimination superseded any statutory exemptions for small employers. The majority distinguished these cases on the ground that the statutory schemes involved in these cases expressly announced a broad policy barring sex discrimination in employment against all employees, despite exempting small employers from the statutes’ purview. The majority also added that judicially cre-
JADA, Vol. 133, November 2002 Copyright ©2002 American Dental Association. All rights reserved.
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ated law, such as public policy exceptions, could never trump an express statutory provision like the exemption for small employers in the Fair Employment Practices Act. The dissenting justices of the Connecticut Supreme Court, however, agreed with the appellate court. The dissent contended that the legislature did not intend the statutory exemption for small employers to trump the state’s otherwise clear and compelling public policy against sex discrimination. In support, the dissent observed that the legislature enacted a comprehensive array of statutes prohibiting sex discrimination in various forms and contexts. The dissent also noted that the legislature in 1973 had passed the Equal Rights Amendment, further supporting the state policy against sex discrimination. In addition, the dissent relied on cases from other jurisdictions concluding that a public policy against discrimination did in fact trump
statutory exemptions for small employers. Several cases have upheld such a public policy exception.3 Given the strongly worded dissent in Ms. Thibodeau’s case, as well as cases allowing discrimination claims against small employers based on a public policy exception, dentist employers can take little comfort in their state antidiscrimination statutes covering businesses larger than their own dental offices. (Indeed, some states may not exempt any employer from discrimination claims, regardless of the employer’s size. For instance, under the Illinois Human Rights Act, an employer with even one employee is subject to suit for discrimination claims based on physical or mental handicap unrelated to ability, as well as sexual harassment.4) A state court may rule that a general public policy against discrimination may overcome any specific statutory exemption in
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order to hold an otherwise exempt employer liable. Dentists also may want Mr. Sfikas is ADA chief to think twice counsel and an adjunct proabout termifessor of law at Loyola University of Chicago School of nating an Law. He has lectured and employee even written on legal issues and if the dentists is a fellow of the American College of Trial Lawyers. believe they Address reprint requests to may be ultiMr. Sfikas at the ADA, 211 E. Chicago Ave., Chicago, Ill. mately victorious in a state 60611. supreme court. Given the significant expense of litigation, such a victory may not be worth the cost. ■ The author expresses his appreciation to Brent Hanfling, senior staff attorney, ADA Division of Legal Affairs, for his assistance in preparing this article. This article is informational only and does not constitute legal advice. Dentists must consult their private attorneys for such advice. 1. 42 U.S.C. Sec. 12111(5)(A). 2. Thibodeau vs. Design Group One Architects, LLC, 802 A.2d 731 (Conn. 2002). 3. Sfikas PM. Age discrimination. JADA 2000;131:519-21. 4. 775 ILCS 5/2-101, 5/2-102.
JADA, Vol. 133, November 2002 Copyright ©2002 American Dental Association. All rights reserved.
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State law, public policy and discrimination t-will employees throughout this her pregnancy in December 1997. The company country have attempted to rely on a terminated her employment in April 1998. Ms. public policy exception to bypass fedThibodeau then filed suit against Design Group eral and state antidiscrimination laws in November 1999, alleging wrongful termination that do not cover employers with of employment in violation of public policy. fewer than a certain number of Specifically, Ms. Thibodeau workers, but who otherwise would be alleged that Design Group fired liable for discrimination against their Dentists may want to her as a result of a pregnancyemployees under these laws. For related appointment to see her think twice about instance, the Americans with Disabilphysician. Design Group, however, terminating an ities Act only covers employers with 15 claimed that Ms. Thibodeau’s teremployee even if the or more employees.1 mination stemmed from her perConnecticut’s Fair Employment formance deficiencies and that, in dentists believe they Practices Act—another example—bars any event, Ms. Thibodeau could may be ultimately employers with three or more people not rely on public policy as the victorious in a state from discriminating against their basis for her suit. supreme court. employees on the basis of pregnancy. The trial court granted sumThe Supreme Court of Connecticut mary judgment to Design Group, recently held that an employee, Nicole ruling that Ms. Thibodeau’s termiAnn Thibodeau, could not attempt an end run nation did not violate any public policy. Specifiaround this statute, on the basis of public policy, cally, the court held that while a Connecticut by suing her former employer for terminating her public policy did exist against employment disbecause she was pregnant, despite the fact that crimination on the basis of pregnancy, that policy the employer had fewer than three employees.2 was limited to employers with three or more The defendant, Design Group One Architects, employees, given the exemption under the Fair LLC (“Design Group”), hired Ms. Thibodeau in Employment Practices Act to employers April 1997 as an at-will employee to perform the employing fewer than three employees. duties of receptionist, secretary and bookkeeper. The appellate court reversed the trial court, During her period of employment, Design Group holding that Connecticut’s laws generally had only two employees, including Ms. reflected a public policy against sex discriminaThibodeau. tion in employment, regardless of the number of Ms. Thibodeau first notified Design Group of people a company employs. In support of its ruling, the appellate court reviewed various state and federal antidiscrimiBY PETER M. SFIKAS, J.D. nation laws purporting to embody this policy
A
JADA, Vol. 133, November 2002 Copyright ©2002 American Dental Association. All rights reserved.
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against sex discrimination. The appellate court also noted that the Fair Employment Practices Act itself manifested a public policy against sex discrimination in employment. In rejecting the argument that the act’s exemption for small employers undermined such a broad policy, the appellate court stated that the act embodied a public policy universal for all employees, but provided a statutory remedy only for those employees who work for employers with three or more people. This case was next appealed to the Connecticut Supreme Court. A majority (five justices) of the Connecticut Supreme Court disagreed with the appellate court’s ruling and ordered the appellate court to affirm the trial court’s original judgment in favor of Design Group. Two justices of the court dissented. The majority first recognized the general proposition that an employer and employee have an at-will relationship in the absence of a contract to the contrary. The majority acknowledged that Connecticut had developed a public policy exception over the years, limiting an employer’s discretion to terminate an employee. However, the majority emphasized that this public policy exception was quite limited and had been permitted only when based on an important and clearly articulated policy. Given its narrow view of the public policy exception, the majority disagreed with the appellate court that a general public policy against employment discrimination trumped the exemption contained in the Fair Employment Practices Act because the exemption itself was an expression of public 1566
policy. The majority stated that to affirm the appellate court would be to ignore a clearly expressed legislative intent to the contrary. The majority then discussed the rationale for the exemption. The majority noted that the
A majority of the Connecticut Supreme Court held that a broad public policy against discrimination superseded any statutory exemptions for small employers.
state legislature did not want to subject the state’s smallest employers to the large burdens involved, financial or otherwise, in defending an employment discrimination case, regardless of the case’s merit. The legislature’s objective was to eliminate discrimination on a larger scale. The majority also noted that the legislature was likely concerned with protecting the intimate and personal relationships that exist in a small-business setting. Regardless of the wisdom of the legislature’s decision to exempt small businesses, the majority stated it could not disregard such an unambiguous legislative policy determination. The majority also rejected arguments put forth by Ms. Thibodeau. First, Ms. Thibodeau argued that, although the state legislature shielded small employers from the various administrative procedures and remedies of the Fair Employment Practices Act, the legislature did not necessarily intend that these employers also would be protected against common
law discriminatory discharge claims. The legislature merely intended to exempt these employers from the burdens of the act’s administrative scheme. The majority responded that the legislature included the administrative scheme for the benefit and protection of the employers. In particular, the scheme was designed to provide all parties with a mechanism to resolve discrimination claims, without the delay and expense associated with bringing an action in state or federal court. For instance, the act requires the state Commission on Human Rights and Opportunities to investigate every complaint, and only after the commission has determined that a reasonable cause for action exists, and arbitration has failed, is a hearing authorized. Given the protections afforded employers through this scheme, the majority reasoned that it would defy common sense to conclude that the legislature would have excluded small employers from the scheme, but nonetheless subject them to wrongful discharge suits based on discrimination. The majority also distinguished cases that Ms. Thibodeau cited from other jurisdictions, holding that a broad public policy against discrimination superseded any statutory exemptions for small employers. The majority distinguished these cases on the ground that the statutory schemes involved in these cases expressly announced a broad policy barring sex discrimination in employment against all employees, despite exempting small employers from the statutes’ purview. The majority also added that judicially cre-
JADA, Vol. 133, November 2002 Copyright ©2002 American Dental Association. All rights reserved.
D E N T I S T R Y
ated law, such as public policy exceptions, could never trump an express statutory provision like the exemption for small employers in the Fair Employment Practices Act. The dissenting justices of the Connecticut Supreme Court, however, agreed with the appellate court. The dissent contended that the legislature did not intend the statutory exemption for small employers to trump the state’s otherwise clear and compelling public policy against sex discrimination. In support, the dissent observed that the legislature enacted a comprehensive array of statutes prohibiting sex discrimination in various forms and contexts. The dissent also noted that the legislature in 1973 had passed the Equal Rights Amendment, further supporting the state policy against sex discrimination. In addition, the dissent relied on cases from other jurisdictions concluding that a public policy against discrimination did in fact trump
statutory exemptions for small employers. Several cases have upheld such a public policy exception.3 Given the strongly worded dissent in Ms. Thibodeau’s case, as well as cases allowing discrimination claims against small employers based on a public policy exception, dentist employers can take little comfort in their state antidiscrimination statutes covering businesses larger than their own dental offices. (Indeed, some states may not exempt any employer from discrimination claims, regardless of the employer’s size. For instance, under the Illinois Human Rights Act, an employer with even one employee is subject to suit for discrimination claims based on physical or mental handicap unrelated to ability, as well as sexual harassment.4) A state court may rule that a general public policy against discrimination may overcome any specific statutory exemption in
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order to hold an otherwise exempt employer liable. Dentists also may want Mr. Sfikas is ADA chief to think twice counsel and an adjunct proabout termifessor of law at Loyola University of Chicago School of nating an Law. He has lectured and employee even written on legal issues and if the dentists is a fellow of the American College of Trial Lawyers. believe they Address reprint requests to may be ultiMr. Sfikas at the ADA, 211 E. Chicago Ave., Chicago, Ill. mately victorious in a state 60611. supreme court. Given the significant expense of litigation, such a victory may not be worth the cost. ■ The author expresses his appreciation to Brent Hanfling, senior staff attorney, ADA Division of Legal Affairs, for his assistance in preparing this article. This article is informational only and does not constitute legal advice. Dentists must consult their private attorneys for such advice. 1. 42 U.S.C. Sec. 12111(5)(A). 2. Thibodeau vs. Design Group One Architects, LLC, 802 A.2d 731 (Conn. 2002). 3. Sfikas PM. Age discrimination. JADA 2000;131:519-21. 4. 775 ILCS 5/2-101, 5/2-102.
JADA, Vol. 133, November 2002 Copyright ©2002 American Dental Association. All rights reserved.
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